National Security Letter Issuance Likely Headed To Supreme Court

Gunkerty Jeb writes The Ninth Circuit appeals court in San Francisco took oral arguments from the Electronic Frontier Foundation and the Department of Justice yesterday over the constitutionality of National Security Letters and the gag orders associated with them. The EFF defended a lower court's ruling that NSLs are unconstitutional, while the DoJ defended a separate ruling that NSLs can be enforced. Whatever the court rules, the issue of NSLs is all but certainly headed for the Supreme Court in the not too distant future.

Comments

DOJ Oaths

[trikes57]

Didn't these guys have to take an oath to defend the Constitution?

Its time to add teeth to Oath Violations. Loss of job, loss of pension, jail time.
To argue that some silly law or court ruling overrides the First Amendment should be a criminal offense.

Re:DOJ Oaths

[AHuxley]

It really depends on the quality of parallel construction needed and what has to be presented in an open US court.
"Feds reviewing DEA policy of counterfeiting Facebook profiles" (Oct 9 2014)
http://arstechnica.com/tech-po...
"Twitter says gag on surveillance scope is illegal “prior restraint”" (Oct 8 2014)
http://arstechnica.com/tech-po...
US says it can hack into foreign-based servers without warrants (Oct 8 2014)
http://arstechnica.com/tech-po...
It seems the NSL aspect is just one aspect a very complex, hidden way of getting and using data for later use in the US legal system.
In the past other surveillance programs like FAIRVIEW, OAKSTAR, RAMPART-A and WINDSTOP could bring in the data locally, globally via friendly nations and tame trusted big brands.
The NSL seems to just fit in between a global sorting and direct use in the US legal system.
It really depends how this plays out. Will the classic GCHQ view of not going to court so people feel like nothing telco related is going on?
Or the new US idea that surveillance is now of such a global reach and low cost that US courts can know and and will have to just understand "collect it all"?
The keys to a server and all users over time are now in play even if its just for legally finding one user for one case.
Once your servers are part of a case, who can legally say that case has stopped? Weeks, months, years of no crypto and all logs. All very legal now? Soon?

Re:DOJ Oaths

[mrchaotica]

To argue that some silly law or court ruling overrides the First Amendment should be a criminal offense.

Replace "First" with "Second", and your statement is still perfectly valid.

Yes, yes it is.

Nobody except moronic, hyper-partisan fuckwads (on "both[1]" "sides[2]") ever argued that the First and Second Amendments were mutually-exclusive, you know!

([1] in actual reality (as opposed to the Bizarro-world perpetuated by the propagandists we call "mainstream media") there are more than two points-of-view on any given issue, and they are not all equally valid.)

([2] the only way to be on a "side" is to blindly worship the totality of a party's platform instead of forming your own ideology. If that describes you, go tear up your voter registration card and then kill yourself, for the good of humanity.)

Re:DOJ Oaths

[LVSlushdat]

..... by the propagandists we call "mainstream media"

I keep wondering WHEN everyone is going to wake up and realize what "we call the mainstream media" has become the
defacto US Department of Propaganda.. We should call things by their correct and factual names.. The "mainstream media"
hasn't been the "4th Estate" in quite a few years...

Re:DOJ Oaths

[mi]

a lot of the second amendment people love to use their rights to intimidate people exercising their first amendment rights.

Citation, please? Enumerate two or three such cases — should not be difficult to do, if it really happens "a lot"... I'll wait. Thank you!

Re:DOJ Oaths

[NoKaOi]

Replace "First" with "Second", and your statement is still perfectly valid.

No, it's not the same thing at all. The 2nd specifies that it applies to a well regulated militia, so it doesn't actually apply literally to gun control, the question is if control violates the intent of it. The 1st, on the other hand, has the qualification of "congress shall make no law..." So any law granting authority for NSLs violates the constitution. In same cases the argument is made that something other than congress passing a law violates the intent of the 1st, but in the case of NSLs, the FBI uses various laws passed by congress as it's rationale, therefore any portions of those laws that do grant the FBI authority for NSLs is unconstitutional whether the 1st is taken literally or on its intent. Of course, that just applies to the disclosure portion. The purpose of the NSL is to force a search and/or seizure without a warrant, which is in direct violation of the 4th amendment.

Nowhere in the text of either the 1st or 4th amendments does it specify exceptions for suspected terrorism. This sort of thing is exactly what the Bill of Rights is meant to protect us against.

Re: DOJ Oaths

[kilfarsnar]

If there wasn't the second amendment, you can bet your bottom dollar that there would no longer be a first amendment. .. or any amendment for that matter.

Yeah, because it's all your guns that are keeping the government from censoring what people can say. Y'all crack me up. How did things work out for David Koresh, or Randy Weaver, or anyone else who thought they could defend themselves from armed government agents? Has the second amendment prevented the Feds from spying on everyone, or seizing people's property, or establishing free speech zones, or otherwise infringing on our rights?

Look, I support gun ownership. I don't own one myself because I do not feel it necessary. But I support the right of any law-abiding citizen to arm themselves if they feel the need. However, the idea that that right will prevent the government from doing anything it wants is pure fantasy. You are outgunned and outnumbered. If they want to get you, they'll get you sooner or later.

All Judges

[Anonymous Coward]

Crazy as it seems, all the judges were sent letters prohibiting them from taking this case due to National Security.

DONATE

[Kludge]

https://eff.org/

Re:I hope SCOTUS will defend the constitution

[Anonymous Coward]

I hope SCOTUS will defend the constitution

Eh, why start now?

Obama Administration

[mi]

In 2008 a pair of "New Black Panters" members were arrested for intimidating voters in Philadelphia. In due time they were sued by Bushitler's Department of Justice, which was about to win the case. Obama's Department of Justice, however, allowed the men to avoid any punishment.

I'm bringing this up to preempt any attempt to defend Obama DoJ current actions defending "Security Letters" by their "having to" defend a law. They don't have to. When they didn't feel like it, they dropped the ball and let several thugs walk free and unscathed. Today they do feel like it, they want to have this law and are earnestly defending it.

They may even win, but even if they lose, it will not be for lack of trying. Oh, and they want to keep a backdoor for themselves in your personal electronics too. Remember that if ever you have a difficulty deciding on who to vote for — a promise, that Democrats will improve your civil liberties, will be a lie.

Re:Balance of power

[jc42]

Sometimes it takes years/decades for power abuse to get curtailed (here's hoping...), but it seems this checks and balance thing can eventually grind through major issues like this. Not great, not perfect, glacially slow but it seems to be working...

So how would we know? Since it's all going on in secret, with severe punishments for anyone who speaks openly and truthfully about what they've been ordered to do, the only assumption that the proverbial "reasonable man" (or woman? ;-) would make is that we have no idea what they're planning to do to us next. This story could all be just "theater" to lead us to think that things are improving.

As long as the question "How would we know" is illegal for the participants to answer, we should simply assume the worst. We have a lot of history telling us what powerful leaders are likely to be doing to their own population when they enforce secrecy about their actions.